Introduction

The case of A and B (Children : Summary Return : Non-Convention State) ([2022] EWCA Civ 1664) before the England and Wales Court of Appeal (Civil Division) addresses pivotal issues surrounding cross-border child return orders, particularly in contexts where the foreign state is not a party to the 1980 Hague Child Abduction Convention. This case involves the mother appealing an order made by Poole J on 29 July 2022, which mandated the return of two children, A (aged 10) and B (aged 8), to the United Arab Emirates (UAE). The core issues revolve around the application of domestic abuse allegations, compliance with Supreme Court guidance in In re NY (A Child), and adherence to Practice Direction 12J of the Family Procedure Rules 2010.

The parties involved include the mother, represented by Mr. Setright KC and Ms. Guha, and the father, represented by Mr. Devereux KC and Ms. Chaudhry. The dispute centers on the best interests of the children, the presence of alleged domestic abuse by the father, and the legal frameworks governing international child returns.

Summary of the Judgment

Lord Justice Moylan delivered the primary judgment, dismissing the mother's appeal against the summary return order. The court upheld the decision to return the children to the UAE, emphasizing that the judge did not err in abstaining from conducting a fact-finding hearing regarding the mother's domestic abuse allegations. The judgment underscored that the welfare of the children remains paramount and that the absence of the UAE in the Hague Convention framework does not preclude the court from making informed and discretionary decisions based on the available evidence.

The judge assessed the children's strong ties to Dubai, their relatively limited connections to England, and the alleged emotional and psychological impact of the mother's retention of the children in England. While acknowledging the mother's claims of abuse, the court found insufficient credible evidence to necessitate a full-fledged investigation or fact-finding hearing, given the timeline and nature of the allegations.

The decision was supported by fellow justices, Lord Justice Peter Jackson and Lord Justice Warby, who concurred with the dismissal of the appeal.

Analysis

Precedents Cited

The judgment extensively references key precedents that shape the court's approach to international child return orders, especially in non-Hague Convention states:

• Re J (A Child) (2006): Baroness Hale's speech emphasized the necessity of focusing on the individual child's welfare and the significance of the child's connections with each country.
• Re NY (A Child) (2020): Lord Wilson's judgment highlighted the court's discretion in determining the extent of welfare inquiries, especially concerning domestic abuse allegations under Practice Direction 12J.
• Re E (Children) (2012): Provided guidance on assessing risks related to domestic abuse.
• J v J (Return to Non-Hague Convention County) (2021): Cobb J's summary in this case was pivotal in outlining the factors for evaluating summary return orders.
• Re H-N: Offered detailed guidance on applying Practice Direction 12J in cases involving domestic abuse.

These precedents collectively inform the court's balanced consideration of the child's welfare, the feasibility of conducting fact-finding hearings, and the relevance of foreign legal systems in the decision-making process.

Legal Reasoning

The court's legal reasoning was anchored in the application of the welfare principle as stipulated in section 1(1) of the Children Act 1989 (CA 1989). The judge evaluated whether a summary return order was in the children's best interests by balancing various factors, including:

• The children's deep connections to Dubai versus their limited ties to England.
• The alleged domestic abuse by the father and its impact on the children and mother.
• The absence of relocation jurisdiction in Dubai and its implications for enforcing protective measures.
• The children's expressed wishes to remain in England and the potential influence of the mother's circumstances on these wishes.
• The feasibility and enforceability of any settlement agreements in Dubai.

The judge determined that the mother's allegations of past abuse did not significantly impair the children's welfare to the extent of negating a summary return order. Additionally, the court considered that further inquiries or fact-finding hearings were unnecessary given the sufficiency of the existing evidence.

Impact

This judgment reinforces the discretionary power of courts in non-Hague Convention contexts to prioritize the child's welfare without mandatorily conducting comprehensive investigations into domestic abuse allegations, provided the available evidence is deemed sufficient. It underscores the importance of contextual and case-specific assessments over rigid adherence to procedural mandates.

Furthermore, the decision clarifies that the absence of relocation jurisdictions in foreign states like Dubai does not automatically necessitate additional procedural steps in the English legal system. This may streamline future cases involving similar international returns, balancing efficiency with thorough welfare considerations.

Complex Concepts Simplified

Summary Return Order

A summary return order refers to the swift return of a child to their home country after a brief, summary welfare hearing. Unlike more detailed procedures, it involves limited hearings and is typically used when the child's immediate welfare is not in question.

Non-Conventional State

A non-Conventional State is a country that is not a party to the 1980 Hague Child Abduction Convention, meaning it is not bound by the Convention's rules and procedures for handling international child abduction and return cases.

Practice Direction 12J (PD 12J)

PD 12J provides specific guidelines for courts handling cases where domestic abuse is alleged or admitted. It outlines when and how courts should conduct fact-finding hearings to assess the impact of domestic abuse on child welfare.

Fact-Finding Hearing

A fact-finding hearing is a detailed investigation conducted by the court to ascertain the facts surrounding a case, particularly when allegations (such as domestic abuse) are disputed or unclear. The purpose is to provide an evidence-based foundation for the court's decision-making.

Welfare Principle

Central to family law, the welfare principle mandates that the child's best interests are the paramount consideration in any legal decision affecting them. It encompasses various factors, including the child's wishes, emotional needs, stability, and connections to each parent and community.

Conclusion

The appellate court's decision in A and B (Children : Summary Return : Non-Convention State) reaffirms the judiciary's capacity to exercise discretion in matters of international child returns, especially in non-Hague Convention contexts. By dismissing the mother's appeal, the court highlighted the importance of a balanced, case-specific approach to child welfare, acknowledging allegations of domestic abuse without mandating exhaustive investigations when sufficient evidence is present.

This judgment serves as a critical reference for future cases involving international child abductions and returns, particularly in assessing the interplay between domestic abuse allegations and the legal frameworks governing child welfare. It underscores the supremacy of the welfare principle while respecting the operational boundaries of international agreements like the Hague Convention.